Roach v. Kansas City Public Service Co.

• Decision Date: 28 June 1940
• Docket Number: 36326
• Parties: ROACH v. KANSAS CITY PUBLIC SERVICE CO
• Court: Missouri Supreme Court

141 S.W.2d 800

ROACH v. KANSAS CITY PUBLIC SERVICE CO

No. 36326

Supreme Court of Missouri, First Division

June 28, 1940

Hill Riederer & Strayer, of Kansas City, for plaintiff in error.

Charles L. Carr and Watson, Ess, Groner, Barnett & Whittaker, all of Kansas City, for defendant in error.

OPINION

HYDE Commissioner.

This is an action for $ 10,000 damages for wrongful death of plaintiff's husband under Section 3262, R.S.1929 Mo.St.Ann. § 3262, p. 3353. The verdict and judgment was for defendant. Plaintiff brings the case here by writ of error.

Plaintiff's assignments of error only go to the correctness of rulings on evidence and instructions. Plaintiff's husband, a police officer, died from injuries received when he fell while attempting to catch defendant's bus. The case was submitted solely upon humanitarian negligence. Plaintiff's main instruction authorized a verdict, if the jury found (among other things) that 'plaintiff's husband, William J. Roach, stood at the front door of said bus, while said bus was stopped at said time and place, and that the door of said bus was closed and that thereafter the said Roach rapped on the said door while the bus was standing still, to notify the operator of said bus of his intention to board the same, and that said Roach was in a position of imminent peril of being struck and injured by the starting forward of said bus and unable to extricate himself therefrom, and that defendant's operator in charge of said bus saw, or by the exercise of ordinary care on his part could have seen, the said Roach in a position of imminent peril and unable to extricate himself therefrom, and that the said operator started said bus, and that the bus struck Roach and caused him to fall or be thrown down, and that the said Roach was injured as a direct result thereof, and as a direct result thereof he died.' ('if so, etc.' deleted.)

At the time Roach was injured, it was snowing and the streets were icy. Plaintiff had a witness (Mrs. Carroll) who testified that she was seated immediately behind the driver of the bus, and on the north side of the bus; that she saw Roach standing at the bus entrance on the south side of the bus; that the doors were closed and he rapped rapidly upon the door and said, 'Here, wait a minute'; that the bus operator did not open the door but started the bus, pulling out to go northeast; and that she then saw the bus strike Roach, and saw that the bus knocked him down. She also said that she could not say just what part of the bus struck him, but that 'it would not be far from the door', and that she did not know whether Roach was in the street or on the sidewalk at the time. Defendant had several witnesses who testified that Roach was hurrying to catch the bus (one witness said that he was running); that he only got to about the middle of the bus when it started to move; that he then slipped and fell; and that he fell between the curb and the rear wheel of the bus. None of the witnesses felt any jerk or jar of the bus or felt it run over anything. The driver stopped the bus within a few feet (it moved about 15 feet) when some of the passengers screamed. Roach was found lying in the street close behind the rear end of the bus. He had broken thigh and pelvic bones. One witness also said his head struck the pavement.

Plaintiff made assignments of error against instructions D, F, and J, which were as follows:

'D. The court instructs the jury that if you find and believe from the evidence that at the time the bus in question started forward into motion from the bus stop mentioned in evidence William Roach was standing in a position of safety upon the sidewalk to the south of said bus and in the clear of the path of said bus, if you so find, and that thereafter and while said bus was moving, if you so find, William Roach slipped, fell or was caused to fall into, under or against said bus, if you so find, then you are instructed that plaintiff is not entitled to recover and your verdict must be for the defendant.'

'F. The court instructs the jury that if you find and believe from the evidence that the bus in question did not strike William Roach, then you are instructed that, regardless of any other fact or circumstance in this case, plaintiff is not entitled to recover and your verdict must be for the defendant.'

'J. The court instructs the jury that if you find and believe from the evidence that at the time the bus in question started into motion from the bus stop mentioned in evidence William Roach was not in a position of imminent peril or danger of being struck and injured by said bus, then you are instructed that plaintiff is not entitled to recover and your verdict must be for the defendant. By the term 'imminent peril' or 'danger' is meant a place where there is certain danger -- not a place where there is just a mere possibility of an injury occurring.'

Complaint is made against 'D' that 'it assumes that if Roach was standing on the sidewalk he was in a position of safety.' Clearly it requires the jury to find both that Roach was in a position of safety and also in the clear of the path of the bus at the time the bus 'started forward into motion and that thereafter Roach slipped and fell 'into, under or against' it. This shows that there is no merit in this complaint nor the further contention that it conflicted with plaintiff's instruction No. 1. It is in the nature of a converse humanitarian instruction, requiring the finding of facts (supported by defendant's evidence) which would negative one of the basic elements essential to recovery upon plaintiff's theory submitted by her instruction No. 1; namely, that 'Roach was in a position of imminent peril of being struck and injured by the starting forward of said bus.' This is likewise true of 'J' which in specific terms requires a finding that 'Roach was not in a position of imminent peril or danger of being struck and injured by said bus' at the time it started into motion. Plaintiff's argument seems to be that, even though 'Roach might not have been in a position of imminent peril at the very instant the bus started forward,' still humanitarian negligence could be found on the theory that he might 'thereafter by the movement of the bus on its swinging course (due to slipping on the icy street) have been in peril.' It is sufficient to say that this was not the case submitted to the jury by plaintiff's own instruction No. 1 which stated the only theory that plaintiff chose to submit. Moreover, if any such theory had been submitted it would not have been a case of humanitarian negligence. This court has now settled the proposition that there is no humanitarian case (and no humanitarian negligence) until the person involved is in a position of imminent peril and only when the operator of the instrumentality, creating the danger, has time and ability to act to prevent his injury after he is in such position. This is because no duty to act under the humanitarian rule arises merely if such person may soon be in, or is approaching, or is about to come into a position of imminent peril. Buehler v. Festus Mercantile Co., 343 Mo. 139, 119 S.W.2d 961; State ex rel. Snider v. Shain, Mo.Sup., 137 S.W.2d 527; Hilton v. Term. R. Ass'n, Mo.Sup., 137 S.W.2d 520. What plaintiff's contention amounts to is that it was humanitarian negligence to start the bus because the driver should have anticipated that it might slip on the icy street after it began to move and that, if it did, plaintiff might thereafter be in a position of imminent peril. Thus, plaintiff contends that there was humanitarian negligence herein before there was position of imminent peril, which is a complete misconception of the fundamental basis of the humanitarian rule. Therefore, these contentions made against instructions 'D' and 'J' must be overruled.

Plaintiff also claims that the definition of the term 'imminent peril', in instruction J, 'was improper and inaccurate, confusing and misleading.' However, this definition is in accord with the meaning of the term 'imminent peril' as discussed in many previous decisions of this court, and substantially this same instruction has been approved by both Divisions of this Court. Wallace v. St. Joseph R., L., H. & P. Co., 336 Mo. 282, 77 S.W.2d 1011; Kirkham v. Jenkins Music Co., 340 Mo. 911, 104 S.W.2d 234; Mahl v. Terrell, 342 Mo. 15, 111 S.W.2d 160; Bates v. Brown Shoe Co., 342 Mo. 411, 116 S.W.2d 31; Lotta v. Kansas City Pub. Serv. Co., 342 Mo. 743, 117 S.W.2d 296; Branson v. Abernathy Furniture Co., Mo.Sup., 130 S.W.2d 562. Plaintiff's contention against instruction 'F' is that 'it singled out the evidence' and 'was contrary to the physical facts shown in evidence, and conflicted with plaintiff's Instruction...